Present: ALL THE JUSTICES
BOARD OF SUPERVISORS OF
FAIRFAX COUNTY
OPINION BY CHIEF JUSTICE LEROY R. HASSELL, SR.
v. Record No. 032390 November 5, 2004
BOARD OF ZONING APPEALS OF
FAIRFAX COUNTY, ET AL.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Leslie M. Alden, Judge
The primary issue we consider in this appeal is whether a
county has standing to challenge the decision of a board of
zoning appeals.
I.
James L. Hickerson owns a parcel of land in Fairfax
County. The parcel is subject to a zoning classification of
R-3 District (Residential District, Three Dwelling
Units/Acre). The minimum lot requirement in this zoning
classification is 10,500 square feet, and the minimum lot
width requirement is 80 feet. A single-family dwelling is on
the parcel which contains 24,449 square feet of land in excess
of the R-3 zoning classification requirement for a single-
family dwelling.
In 1936, a former owner subdivided the parcel from a
larger tract of land. The subdivision was not created in
compliance with the County's subdivision ordinance in effect
in 1936 that required the County to approve the metes and
bounds description of the subdivision.
Hickerson acquired his parcel in 1964. In 2002, he
desired to subdivide that parcel into two lots, but one of the
proposed lots would have a minimum lot width of 20 feet, in
violation of the County's zoning ordinance.
Hickerson sought a variance from the Board of Zoning
Appeals (BZA) that would permit him to subdivide his parcel
into the two lots and construct a house on each lot. He
essentially asserted in his application that the strict
application of the zoning ordinance would produce "undue
hardship" because the exceptional size of his parcel precludes
the maximum use of his land as provided by the R-3 zoning
classification, and he could not construct two new homes on
the proposed lots without a variance.
The BZA granted the requested variance on the basis that
the request satisfied the requisites enumerated in Code
§ 15.2-2309(2). The Board of Supervisors filed a petition for
a writ of certiorari in the circuit court challenging the
decision of the BZA. The circuit court held that the Board of
Supervisors had standing to challenge the decision of the BZA,
but the court approved the BZA's decision to grant the
variance. The Board of Supervisors appeals the circuit
court's judgment approving the BZA's decision, and the BZA and
2
Hickerson assign cross-error to that portion of the court's
judgment that concluded that the Board of Supervisors has
standing to maintain this proceeding.
II.
A.
Code § 15.2-2314 states in relevant part:
"Any person or persons jointly or severally
aggrieved by any decision of the board of zoning
appeals, or any aggrieved taxpayer or any officer,
department, board or bureau of the locality, may
file with the clerk of the circuit court for the
county or city a petition specifying the grounds on
which aggrieved within 30 days after the final
decision of the board."
The BZA and Hickerson assert that the County lacks standing to
challenge the decision to grant the variance because the
County is not aggrieved within the intendment of this statute.
We disagree.
Pursuant to Code § 15.2-2314, any person who is aggrieved
by any decision of a BZA may file a petition with a circuit
court challenging that BZA decision. The word "person"
includes legal entities and, therefore, a local governing body
qualifies as a "person" with authority to petition the circuit
court to challenge a BZA decision. Code § 1-13.19. The BZA
and Hickerson do not dispute that the Board of Supervisors is
a person within the meaning of this statute.
3
Code § 15.2-1401 states in relevant part that "all powers
granted to localities shall be vested in their respective
governing bodies." Code § 15.2-2240, which requires
localities to adopt ordinances regulating subdivision and
development of land, states: "The governing body of every
locality shall adopt an ordinance to assure the orderly
subdivision of land and its development." Code § 15.2-2280
authorizes localities to enact zoning ordinances that
regulate, restrict, prohibit, or determine the use of land,
buildings, structures or other premises:
"Any locality may, by ordinance, classify the
territory under its jurisdiction or any substantial
portion thereof into districts of such number, shape
and size as it may deem best suited to carry out the
purposes of this article, and in each district it
may regulate, restrict, permit, prohibit, and
determine the following:
"1. The use of land, buildings, structures and
other premises for agricultural, business, industrial,
residential, flood plain and other specific uses;
"2. The size, height, area, bulk, location,
erection, construction, reconstruction, alteration,
repair, maintenance, razing, or removal of structures;
"3. The areas and dimensions of land, water, and
air space to be occupied by buildings, structures and
uses, and of courts, yards, and other open spaces to be
left unoccupied by uses and structures, including
variations in the sizes of lots based on whether a public
or community water supply or sewer system is available
and used; or
"4. The excavation or mining of soil or other
natural resources."
Code § 15.2-2308 requires that every locality that has enacted
a zoning ordinance establish a board of zoning appeals.
4
As demonstrated by these statutes, a board of supervisors
has a strong interest in the proper and uniform application of
its zoning ordinances. The United States Supreme Court has
observed, and we agree, that a local government's exercise of
its zoning authority is "one of the most essential powers of
government, one that is the least limitable." Hadacheck v.
Sebastian, 239 U.S. 394, 410 (1915). Without question,
improper decisions of a board of zoning appeals can impede the
uniform and proper application of zoning ordinances and the
grant of improper variances can undermine and even destroy the
very goals that the zoning classifications were enacted to
achieve.
Code § 15.2-1404 grants a local governing board the broad
power to institute actions in its own name with regard to "all
matters connected with its duties." One legislative purpose
manifested in this statutory grant is to enable the local
governing body to ensure compliance with its legislative
enactments, including its zoning ordinance. If the local
governing body does not have such authority, that body's
legislative acts could be effectively nullified by a BZA, and
the governing body would be powerless to take action to
require compliance with its own ordinances. Moreover, a
holding that would preclude a board of supervisors from
seeking judicial review of a decision of a board of zoning
5
appeals would enable a board of zoning appeals to exercise
power arbitrarily. Certainly, the General Assembly did not
contemplate such an untenable result.
We hold that a board of supervisors is an aggrieved
person within the meaning of Code § 15.2-2314, and thus has
standing to challenge a decision of a BZA. This holding is
consistent with the majority rule adopted by our sister
states.
The Supreme Court of Alabama construed a statute
substantially similar to Code § 15.2-2314, and that court
concluded that a governing body has standing to challenge the
decision of its zoning board. That court observed:
"A zoning board acts independently of the municipal
council that enacts the [zoning] ordinances . . . .
Additionally . . . the improper granting of
variances will not necessarily be challenged by many
aggrieved parties because they might not have the
resources for litigation. Without standing to
challenge the arbitrary granting of variances, the
municipality is unable to prevent the improper
application of its ordinances."
Ex parte City of Huntsville, 684 So.2d 123, 126 (Ala. 1996).
The Supreme Court of Nevada considered whether a
municipality was aggrieved by a decision of a zoning board
and, therefore, had standing to appeal. Concluding that a
municipality has standing, the court noted:
"Most courts considering the issue have held a
municipality may be an aggrieved person within the
meaning of statutes authorizing such a person to
6
institute proceedings to review a decision of a
board of adjustment. . . . We agree with this
authority and believe a municipality has a vested
interest in requiring compliance with its land use
decisions."
City of Reno v. Harris, 895 P.2d 663, 666 (Nev. 1995).
The Supreme Court of Rhode Island has considered whether
a municipality has standing to challenge a zoning board's
decision. The court, construing a statute substantially
similar to Virginia Code § 15.2-2314, concluded that a
municipality can be an aggrieved person so as to have standing
because "'aggrievement' in the public sense occurs whenever
there is a threat to the very real and legitimate interest
which the general public has in the preservation and
maintenance of the integrity of the zoning laws." City of
East Providence v. Shell Oil Co., 290 A.2d 915, 917-18 (R.I.
1972).
The Court of Appeals of Idaho has also considered whether
a municipality is an aggrieved person who has standing to
appeal a decision of its own zoning appeals board. The court
stated:
"Although Idaho Code § 67-5215 does not
specifically authorize a municipality's right to
appeal a decision of its own Zoning Appeals Board, a
municipality or town may be deemed to be an
'aggrieved person' within the meaning of that
section. . . . Clearly the city, being interested
in the maintenance and development of the city and
the property contained therein, has an interest in
the real property which may be adversely affected by
7
the wrongful issuance of a variance by the Zoning
Appeals Board."
City of Burley v. McCaslin Lumber Co., 693 P.2d 1108, 1110
(Idaho Ct. App. 1984). Accord Reichard v. Zoning Board of
Appeals of the City of Park Ridge, 290 N.E.2d 349, 353 (Ill.
App. Ct. 1972); River Oaks-Hyman Place Homeowners Civic
Association v. City of New Orleans, 281 So.2d 293, 294-95 (La.
Ct. App. 1973); County Commissioners of Carroll County v.
Gross, 483 A.2d 755, 759 (Md. 1984); Crosby v. Town of
Belgrade, 562 A.2d 1228, 1231 (Me. 1989); Commco, Inc. v.
Amelkin, 465 N.E.2d 314, 318 (N.Y. 1984); Perelman v. Yeadon
Borough Board of Adjustment, 18 A.2d 438, 439 (Pa. Super. Ct.
1941). But see, e.g., City of East Point v. Crosby &
Stephens, Inc., 160 S.E.2d 839, 841 (Ga. Ct. App. 1968);
Kasper v. Coury, 555 N.E.2d 310, 313 (Ohio 1990); Sabourin v.
Town of Essex, 505 A.2d 669, 670 (Vt. 1985).
Legal commentators have recognized that courts in many
states have held that governing bodies are aggrieved parties
who have standing to challenge decisions of boards of zoning
appeals. For example, one commentator has stated:
"A great many state statutes . . . contain
language similar to that in Colorado legislation,
providing that '[an] appeal may be taken by any
person aggrieved or by an officer, department,
board, or bureau of the municipality.' This
language is usually understood to allow a local
government to challenge a decision of its own board
of appeals. Even where the language has been
8
removed from the statute, a local government may
qualify as an aggrieved. The specific language of
enabling statutes aside, many courts agree that a
municipality may qualify as an aggrieved party for
standing."
E. C. Yokley, 4 Zoning Law and Practice § 24-4 (Rev. 4th ed.
2003). Additionally, another commentator has explained:
"In some states, it is held that aggrievement
in a public sense occurs whenever the action of the
board of appeals appears to threaten the
preservation and integrity of the zoning plan, for
instance, by the wrongful grant of a special permit.
Thus, the municipality may challenge the zoning
board’s grant of a variance or special exception
permit or a court decision thereon."
Arden H. Rathkopf and Daren A. Rathkopf, Rathkopf's The Law of
Zoning and Planning, § 63:24 (2002).
B.
Hickerson and the BZA contend that our decision in
Virginia Beach Beautification Comm'n v. Board of Zoning
Appeals, 231 Va. 415, 344 S.E.2d 899 (1986), requires
dismissal of the Board of Supervisors' appeal. We disagree.
In Virginia Beach Beautification Comm'n, we did not
consider whether a board of supervisors has standing to
challenge a decision of the board of zoning appeals.
Additionally, we did not consider whether a board of
supervisors is an aggrieved party within the meaning of Code
§ 15.2-2314. Rather, we considered whether a non-stock
corporation with a membership of over 400 persons and
9
organizations with a stated goal "to help make and keep
Virginia Beach one of the most beautiful cities in the state"
was aggrieved within the intendment of former Code § 15.1-497,
the precursor to Code § 15.2-2314. Id. at 418-19, 344 S.E.2d
at 902.
Virginia Beach Beautification, which owned no real
property in Virginia Beach, and paid no taxes, attempted to
challenge the Board of Zoning Appeals' decision that granted
Bonnie Road Hotel Associates a height and setback variance to
permit construction of a free-standing sign. We held that the
Virginia Beach Beautification Commission was not aggrieved and
therefore lacked standing. We stated:
"The term 'aggrieved' has a settled meaning in
Virginia when it becomes necessary to determine who
is a proper party to seek court relief from an
adverse decision. In order for a petitioner to be
'aggrieved,' it must affirmatively appear that such
person had some direct interest in the subject
matter of the proceeding that he seeks to
attack. . . . The petitioner 'must show that he has
an immediate, pecuniary and substantial interest in
the litigation, and not a remote or indirect
interest.' . . . Thus, it is not sufficient that
the sole interest of the petitioner is to advance
some perceived public right or to redress some
anticipated public injury when the only wrong he has
suffered is in common with other persons similarly
situated. The word 'aggrieved' in a statute
contemplates a substantial grievance and means a
denial of some personal or property right, legal or
equitable, or imposition of a burden or obligation
upon the petitioner different from that suffered by
the public generally."
Id. at 419-20, 344 S.E.2d at 902-03.
10
Unlike the commission in Virginia Beach Beautification
Comm'n, the Board of Supervisors in this appeal has an
immediate and substantial interest in this litigation. In
contrast to the commission in Virginia Beach Beautification
Comm'n, the Board of Supervisors' interest in this case is
real and immediate because, as we will discuss below, the BZA
granted the variance that is the subject of this litigation in
violation of the County's zoning ordinance and Code § 15.2-
2309(2), which prescribe the conditions that must be satisfied
before a variance may be granted. The issuance of variances
in disregard of the County's zoning ordinances and Virginia
statutes has a direct impact upon the County because such acts
will vitiate the County's zoning scheme. And, unlike the
commission in Virginia Beach Beautification Comm'n, the Board
of Supervisors has a strong interest in the valid
implementation of its zoning authority, which is a police
power conferred upon the County by the Commonwealth.
We note that our holding is consistent with this Court's
decision in Wolfe v. Board of Zoning Appeals of Fairfax
County, 260 Va. 7, 532 S.E.2d 621 (2000). In Wolfe, we
considered, among other things, whether a zoning administrator
could file a petition for certiori to the circuit court
pursuant to Code § 15.2-2314 without the authorization of a
board of supervisors. We held that Code § 15.2-2286(A)(4)
11
permits a zoning administrator to pursue an appeal on behalf
of a board of supervisors only when the board has authorized
such action. We explained: "[T]here is imposed upon 'any
officer' taking action under Code § 15.2-2314 the requirement
that the action be on behalf of the local governing body."
Id. at 20-21, 532 S.E.2d at 628.
We acknowledged in Wolfe that the General Assembly
authorized a zoning administrator to challenge a decision of a
board of zoning appeals if the board of supervisors directs
the zoning administrator to file a petition for writ of
certiori in the circuit court. Certainly, if a zoning
administrator, who is an agent of a board of supervisors, has
standing to challenge a decision of a board of zoning appeals,
then the board of supervisors, which is the principal, has the
same authority. It is a fundamental rule of agency law that
an agent does not have greater authority than its principal.
III.
The Board of Supervisors contends that the BZA lacked the
authority to grant the challenged variance because Hickerson
failed to demonstrate that he had incurred a hardship required
by Code § 15.2-2309. Responding, Hickerson and the BZA
contend that Hickerson incurred a hardship. They assert that:
"The use of Mr. Hickerson's residentially zoned lot is
severely and unreasonably restricted by the fact that, through
12
no fault of Mr. Hickerson's, it was not validly created in
1936 . . . . The County would not issue a building permit for
any improvement of the lot or house on the lot until the lot
was made valid. . . . Without permits, neither Mr. Hickerson
nor his transferees or heirs may add or modify plumbing,
upgrade the electrical system to modern safety standards, add
central heating or air conditioning, make any structural
modifications, for safety reasons or otherwise, nor make
additions to the 1936 structure."
We disagree with Hickerson and the BZA. The General
Assembly has given boards of zoning appeals the following
power:
"To authorize upon appeal or original application in
specific cases such variance as defined in § 15.2-2201
from the terms of the ordinance as will not be contrary
to the public interest, when, owing to special conditions
a literal enforcement of the provisions will result in
unnecessary hardship . . . ."
Code § 15.2-2309(2). Additionally, the General Assembly has
prescribed the following standards that govern the power of a
board of zoning appeals to grant variances:
"No such variance shall be authorized by the
board unless it finds:
"a. That the strict application of the
ordinance would produce undue hardship;
"b. That the hardship is not shared generally
by other properties in the same zoning district and
the same vicinity; and
"c. That the authorization of the variance
will not be of substantial detriment to adjacent
13
property and that the character of the district will
not be changed by the granting of the variance."
Id.
We have recently stated that a board of zoning appeals
has authority to grant variances only to avoid an
unconstitutional result. Cochran v. Fairfax County Board of
Zoning Appeals, 267 Va. 756, 764, 594 S.E.2d 571, 576 (2004).
In Cochran, homeowners applied for variances from the
applicable setback requirements so that they could build new
structures on their lots, and two homeowners applied for
variances from the applicable limitation on "accessory
structures" that could be constructed on their property. We
held the homeowners had not met the standards prescribed in
Code § 15.2-2309. We explained that each of the landowners
could have reconfigured their development plans to meet their
goals without a variance. We stated that "[w]ithout any
variances, each of the properties retained substantial
beneficial uses and substantial value. The effect of the
respective zoning ordinances upon them in no sense
'interfere[d] with all reasonable beneficial uses of the
property, taken as a whole.' " Id. at 766, 594 S.E.2d at 577-
78.
This Court also previously considered the meaning of
undue hardship. In Packer v. Hornsby, 221 Va. 117, 267 S.E.2d
14
140 (1980), we held a board of zoning appeals erred in
granting a variance from a setback requirement to a applicant
who wished to build an extension on his home on the
oceanfront. We explained that the homeowner did not
experience undue hardship. We stated:
"The applicants already ha[d] a dwelling, which they
did not seek to expand for ten years, and they
c[ould] enlarge the house without violating the
setback requirement by adding to the west side of
the structure. The evidence shows that the
[homeowners] simply would prefer to expand to the
east in order to have a better floor plan with a
better view of the ocean."
Id. at 122, S.E.2d at 143.
Similarly, this Court held that a board of zoning appeals
erred in granting a variance from a setback requirement in
Board of Zoning Appeals v. Nowak, 227 Va. 201, 315 S.E.2d 221
(1984). We concluded that the applicant requesting the
variance did not experience undue hardship simply because he
was unable to build a home on his lot without adjusting the
location of the proposed home on the lot. We explained that
the homeowner had not met the undue hardship requirement
imposed by the statute because his application involved
"a situation where, as an alternative to violating
the setback requirement, an applicant for a variance
need only shift the position of the structure he
proposes to build. Understandably, this alternative
does not 'suit' the applicant. But to grant him a
variance under these circumstances would bestow upon
him a 'special privilege or convenience,' and this
is impermissible . . . ."
15
Id. at 205, S.E.2d at 223.
Likewise, Hickerson does not experience an undue
hardship. He has enjoyed the use of his home since 1964. He
seeks a variance so that he can demolish the current structure
on his property, subdivide his property into two lots, and
erect new residential structures on each lot. His inability
to subdivide his property does not constitute a hardship under
the facts of this case. The effect of the zoning ordinance
does not interfere "with all reasonable beneficial uses of the
property, taken as a whole." Cochran, 267 Va. at 766, 594
S.E.2d at 577-78.
IV.
In view of the above holdings, we need not consider the
litigants' remaining contentions. We will affirm that portion
of the circuit court's judgment that held that the Board of
Supervisors is an aggrieved party and, therefore, has standing
to challenge the decision of the BZA. We will reverse that
portion of the circuit court's judgment that held that the BZA
properly granted the variance. We will vacate the BZA's
decision to grant the variance, and we will enter a final
judgment in favor of the Board of Supervisors.
Affirmed in part,
reversed in part,
and final judgment.
16
JUSTICE KINSER, with whom JUSTICE LACY joins, dissenting.
Today, the majority concludes that, because the Board of
Supervisors of Fairfax County (“Board”) “has a strong interest
in the proper and uniform application of its zoning
ordinances,” it has standing as an “aggrieved person” under
Code § 15.2-2314 to file a petition for a writ of certiorari
seeking reversal of a decision by the Fairfax County Board of
Zoning Appeals (“BZA”) granting a variance to James L.
Hickerson. That “strong interest” is no different from the
interest of the public generally. Thus, in my view, the
majority broadens and thereby redefines the term “aggrieved
person.” For that reason, I cannot join the majority and
respectfully dissent.
The BZA and Hickerson argue that the Board lacks standing
under Code § 15.2-2314 not only because the Board is not a
“person . . . aggrieved” but also because the Board is not a
“board . . . of the locality” as that phrase is used in the
statute. I will address both arguments respectively.
I. AGGRIEVED PERSON
In Virginia Beach Beautification Comm’n v. Board of
Zoning Appeals, 231 Va. 415, 419-20, 344 S.E.2d 899, 902-03
(1986), this Court defined the term “aggrieved person.” We
stated:
17
In order for a petitioner to be “aggrieved,” it must
affirmatively appear that such person had some direct
interest in the subject matter of the proceeding that he
seeks to attack. The petitioner “must show that he has
an immediate, pecuniary and substantial interest in the
litigation, and not a remote or indirect interest.”
Thus, it is not sufficient that the sole interest of the
petitioner is to advance some perceived public right or
to redress some anticipated public injury when the only
wrong he has suffered is in common with other persons
similarly situated. The word “aggrieved” in a statute
contemplates a substantial grievance and means a denial
of some personal or property right, legal or equitable,
or imposition of a burden or obligation upon the
petitioner different from that suffered by the public
generally.
(Citations omitted). See also, Virginia Ass’n of Ins. Agents
v. Commonwealth, 201 Va. 249, 254, 110 S.E.2d 223, 227 (1959);
Nicholas v. Lawrence, 161 Va. 589, 593, 171 S.E. 673, 674
(1933). That definition has been consistently followed by
this Court. See, e.g., Wilkins v. West, 264 Va. 447, 458, 571
S.E.2d 100, 106 (2002); Trustees v. Taylor & Parrish, Inc.,
249 Va. 144, 151-52, 452 S.E.2d 847, 851 (1995); Vulcan
Materials Co. v. Board of Supervisors, 248 Va. 18, 24, 445
S.E.2d 97, 100 (1994). I find the precedent controlling and
believe the well-established definition of the term “aggrieved
person” must be applied in the present case. However, the
majority fails to do so.
Based on the statutory provisions authorizing the
governing body of every locality to adopt zoning ordinances,
see Code § 15.2-2280, and requiring a locality that has
18
enacted a zoning ordinance to establish a board of zoning
appeals, see Code 15.2-2308, the majority concludes that the
Board has a “strong interest in the valid implementation of
its zoning authority” and that “improper decisions of [the
BZA] can impede the uniform and proper application of zoning
ordinances”, thereby “vitiat[ing] the County’s zoning scheme.”
This impediment, according to the majority, is an aggrievement
giving the Board “an immediate and substantial interest in
this litigation.” But, the majority fails to explain how the
impediment is “a denial of some personal or property right,
. . . or imposition of a burden or obligation . . . different
from that suffered by the public generally.” Virginia Beach
Beautification Comm’n, 231 Va. at 419-20, 344 S.E.2d at 903.
The General Assembly has stated that the purpose of
zoning ordinances is to “promot[e] the health, safety or
general welfare of the public.” Code § 15.2-2283. Thus, the
Board’s interest in the proper application of its zoning
ordinances is an interest shared by the public and is no
different than the public’s interest in the valid enforcement
of such ordinances. Any imposition on this interest is a
“public aggrievement.” Although never clearly stated, the
majority’s reasoning is premised on the theory of a “public
aggrievement,” a concept found in some of the cases relied
upon by the majority.
19
For example, in City of East Providence v. Shell Oil Co.,
290 A.2d 915 (R.I. 1972), the issue was whether the City of
East Providence had standing to appeal the decision of its
zoning board. The pertinent statute allowed “[a]ny person or
persons . . . aggrieved by a decision of the zoning board” to
appeal to the superior court. Id. at 917 n.2 (emphasis in
original). Recognizing that it had already stated that the
term “ ‘aggrievement’ may be entitled to an expanded
interpretation whenever ‘the public has an interest in the
issue which reaches out beyond that of the immediate
parties,’ ” the court decided that, in the zoning context,
“ ‘aggrievement’ ” has “both a personal and a public sense.”
Id. at 917 (quoting Buffi v. Ferri, 259 A.2d 847, 849 (R.I.
1969)).
“Aggrievement” in the personal sense . . . calls for an
actual and practical, as distinguished from a
theoretical, interest in the controversy and requires a
showing by the one claiming to be “aggrieved” that the
use of his property will be adversely affected by the
decision granting relief from the terms of the
ordinance. . . . “[A]ggrievement” in the public sense
occurs whenever there is a threat to the very real and
legitimate interest which the general public has in the
preservation and maintenance of the integrity of the
zoning laws.
Id. at 918.
Similarly, the decision in Ex parte City of Huntsville,
684 So. 2d 123, 126 (Ala. 1996), was premised on the logic of
20
a “public aggrievement”: “Without standing to challenge the
arbitrary granting of variances, the municipality is unable to
prevent the improper application of its ordinances.” See also
City of Burley v. McCaslin Lumber Co., 693 P.2d 1108, 1110
(Idaho Ct. App. 1984) (city had standing to seek review of the
decision of the zoning appeals board because “wrongful
issuance of a variance may impede the city’s ability to
properly administer the provisions of its zoning ordinance”);
City of Reno v. Harris, 895 P.2d 663, 666 (Nev. 1995)
(“municipality has a vested interest in requiring compliance
with its land use decisions”; thus the city was an aggrieved
party). However, this idea of a “public aggrievement” does
not square with Virginia’s previously established definition
of the term “aggrieved”: “a burden or obligation upon the
petitioner different from that suffered by the public
generally.” Virginia Beach Beautification Comm’n, 231 Va. at
419-20, 344 S.E.2d at 903. In other words, Virginia has never
recognized standing based on the notion of a “public
aggrievement.” Cf. Virginia Employment Comm’n v. City of
Virginia Beach, 222 Va. 728, 733, 284 S.E.2d 595, 598 (1981)
(even though Virginia Employment Commission disagreed with the
circuit court’s decision regarding unemployment benefits, it
was “not aggrieved to any greater extent than would be any
other state agency, department, commission, or regulatory body
21
which finds itself in disagreement with a decision of a court
of competent jurisdiction”).
The State of Indiana has a similarly strict definition of
the term “aggrieved person.” See McFarland v. Pierce, 45 N.E.
706, 706 (Ind. 1897) (“denial of some personal or property
right or the imposition upon a party of a burden or
obligation”). In accordance with that definition, the Indiana
Court of Appeals rejected the idea of a “public aggrievement.”
See Metropolitan Dev. Comm’n of Marion County v. Cullison, 277
N.E.2d 905, 908 (Ind. Ct. App. 1972). The court stated that
providing aggrieved persons the right to judicial review is
not the same as providing those aggrieved persons with “an
official representative to assert that right for their
benefit.” Id.
Moreover, the majority opinion opens the door to standing
based on a “public aggrievement” in other areas of the law.
After this ruling, where the General Assembly has created a
right of appeal from the enforcement of any ordinance,
whichever locality promulgated the ordinance will have
standing to appeal as a representative of the public. For
example, the provisions of Code § 15.2-619 require a board of
supervisors to establish a board of real estate review and
equalization to review all real estate assessments and hear
appeals from “any person aggrieved.” Code § 15.2-619. The
22
statute provides that “[a]ny person aggrieved by any
reassessment or action of the board of real estate review and
equalization may apply for relief to the circuit court of the
county.” Id.
Under the majority’s reasoning in the present case, a
board of supervisors could seek judicial review of a decision
by the board of real estate review and equalization as a
representative of the public. Both the public and a board of
supervisors have an interest in preserving anticipated
revenues from real estate taxes. It seems unlikely that the
General Assembly created such an avenue for judicial relief
for anyone other than the individual owner of the real estate
against which the tax was assessed. Similarly, as regards
variances, the General Assembly did not create such an avenue
of judicial relief for any entity other than the person or
persons suffering “a denial of some personal or property right
. . . or imposition of a burden or obligation . . . different
from that suffered by the public generally.” Virginia Beach
Beautification Comm’n, 231 Va. at 419-20, 344 S.E.2d at 903.
To support its position, the majority also turns to the
provisions of Code § 15.2-1404. The majority concludes that
“[o]ne legislative purpose manifested in this statutory grant
is to enable the local governing body to ensure compliance
with its . . . zoning ordinance.” However, this statute
23
merely provides that a locality “may sue or be sued in its own
name in relation to all matters connected with its duties.” I
find nothing in this statute of general application that makes
a local governing body an “aggrieved person” within the
meaning of Code § 15.2-2314, a statute of specific application
governing an appeal from the decision of a board of zoning
appeals. See Virginia Nat’l Bank v. Harris, 220 Va. 336, 340,
257 S.E.2d 867, 870 (1979) (“when one statute speaks to a
subject in a general way and another deals with a part of the
same subject in a more specific manner, the two should be
harmonized, if possible, and where they conflict the later
prevails”).
In the same context, the majority argues that precluding
the Board from appealing the BZA’s decision “would enable [the
BZA] to exercise power arbitrarily.” I do not agree with that
statement. A holding in this case that the Board does not
have standing would not allow the BZA to act arbitrarily. The
very statute at issue, Code § 15.2-2314, provides judicial
review for “aggrieved persons” and other enumerated entities.
Thus, any arbitrary decision by the BZA is subject to check
upon judicial review.
The majority cites the legal commentary and case law that
find a locality has standing to appeal the decision of its own
board of zoning appeals. It is true that some states hold
24
that a municipality can be an “aggrieved person”;1 however,
other states grant standing under different statutory
language,2 and still other states find that a locality does not
have standing.3 In other words, a majority of the states find
that a locality has standing, but there is no majority of
states that find such standing based on the “aggrieved person”
statutory language.
For these reasons, I conclude that the Board did not have
standing as an “aggrieved person” under Code § 15.2-2314 to
1
Ex parte City of Huntsville, 684 So. 2d 123, 126-27
(Ala. 1996); City of Burley v. McCaslin Lumber Co., 693 P.2d
1108, 1110-11 (Idaho Ct. App. 1984); Crosby v. Belgrade, 562
A.2d 1228, 1231 (Me. 1989); City of Reno v. Harris, 895 P.2d
663, 665-66 (Nev. 1995); Town of Mesilla v. City of Las
Cruces, 898 P.2d 121, 124 (N.M. Ct. App. 1995); Perelman v.
Yeadon Borough Bd. of Adjustment, 18 A.2d 438, 439 (Pa. Super.
Ct. 1941); City of East Providence v. Shell Oil Co., 290 A.2d
915, 918 (R.I. 1972).
2
J & L Diversified Enters. v. Municipality of Anchorage,
736 P.2d 349, 351 n.1 (Alaska 1987); City and County of Denver
v. Board of Adjustment, 505 P.2d 44, 45 (Colo. Ct. App. 1972);
Board of County Comm’rs v. Board of Zoning Appeal, 761 So. 2d
1217, 1218-19 (Fla. Dist. Ct. App. 2000); Reichard v. Zoning
Bd. of Appeals of Park Ridge, 290 N.E.2d 349, 352 (Ill. App.
Ct. 1972); River Oaks-Hyman Place Homeowners Civic Ass’n. v.
City of New Orleans, 281 So. 2d 293, 294-95 (La. Ct. App.
1973); Planning Bd. of Marshfield v. Zoning Bd. of Appeals of
Pembroke, 695 N.E.2d 650, 652 (Mass. 1998).
3
City of East Point v. Crosby & Stephens, Inc., 160
S.E.2d 839, 841 (Ga. Ct. App. 1968); Metropolitan Dev. Comm’n
v. Cullison, 277 N.E.2d 905, 908 (Ind. Ct. App. 1972); Kasper,
Zoning Inspector v. Coury, 555 N.E.2d 310, 313 (Ohio 1990);
Township of Dover v. Board of Adjustment, 386 A.2d 421, 425
(N.J. Super. Ct. App. Div. 1978); Sabourin v. Town of Essex,
505 A.2d 669, 670 (Vt. 1985).
25
seek judicial review of the decision by the BZA. The Board
did not suffer any “burden or obligation . . . different from
that suffered by the public generally.” Virginia Beach
Beautification Comm’n, 231 Va. at 419-20, 344 S.E.2d at 903.
I am not willing to expand the well-established definition of
the term “aggrieved person” to include the concept of a
“public aggrievement.”4 To do so creates “a result the
[General Assembly] has apparently decided is either
unnecessary or undesirable.” Metropolitan Dev. Comm’n, 277
N.E.2d at 908.
II. BOARD OF THE LOCALITY
In addition to providing an appeal for an “aggrieved
person,” the provisions of Code § 15.2-2314 also allow “any
aggrieved taxpayer or any officer, department, board or bureau
of the locality” to appeal a decision by a board of zoning
appeals to the circuit court for the city or county. Although
not addressed by the majority, the question with regard to
this part of the statute is whether the phrase “board . . . of
the locality” includes a board of supervisors.
4
The fact that a zoning administrator can pursue an
appeal on behalf of a board of supervisors pursuant to Code
§ 15.2-2286(A)(4), see Wolfe v. Board of Zoning Appeals of
Fairfax County, 260 Va. 7, 20, 532 S.E.2d 621, 628 (2000),
does not change the analysis. The power of a zoning
administrator to do so is based on a specific grant of
26
General rules of statutory construction require that this
Court determine the intent of the General Assembly based on
the words contained in the statute, unless a literal
construction would create an absurd result. When the language
of the statute is plain and unambiguous, the Court must apply
the plain meaning of the language. Vaughn, Inc. v. Beck, 262
Va. 673, 677, 554 S.E.2d 88, 90 (2001); Shelor Motor Co. v.
Miller, 261 Va. 473, 479, 544 S.E.2d 345, 348 (2001).
Whether the phrase “board . . . of the locality” includes
a board of supervisors is not apparent on the face of Code
§ 15.2-2314. The phrase is not defined in that section or in
any other provision of Chapter 22 of Title 15.2 of the Code of
Virginia, styled “Planning, Subdivision of Land and Zoning.”
A review of Title 15.2 shows that, when the General Assembly
intended to refer to a board of supervisors it generally used
the phrases “board of supervisors” or “governing body.”5 Where
the Code refers to a board of supervisors simply as a “board,”
it does so by explicitly giving the word that meaning, see,
e.g. Code §§ 15.2-402, -502, -602, -802, or by clear use in
context, see, e.g. Code §§ 15.2-1410, -1414.2, -1420. This
authority from the General Assembly and, contrary to the
majority, does not implicate principles of agency law.
5
Code § 15.2-102 defines “governing body” as “the board
of supervisors of a county, council of a city, or council of a
town, as the context may require.” That section also defines
“board of supervisors” as "the governing body of a county.”
27
pattern of identifying a board of supervisors supports the
proposition that the General Assembly did not intend to
include a board of supervisors within the phrase “board . . .
of the locality.”
Excluding the board of supervisors from those
governmental entities identified in Code § 15.2-2314 for
standing purposes does not render the phrase “board . . . of
the locality” meaningless. Title 15.2 recognizes a number of
“board[s] . . . of the locality.” For example, Code § 15.2-
1500 directs localities to provide for the organization of
“all departments, offices, boards, commissions and agencies of
government.” (Emphasis added.) In addition to the authority
to create such “boards” as needed, governing bodies are
required to establish certain boards, such as boards of social
services. See, e.g. Code §§ 15.2-412, -527, -626, -629.
Finally, construing the word “board” to encompass “board
of supervisors” would lead to the inequitable and absurd
result of conferring standing on a board of supervisors but
not on a town or city council. I decline to attribute to the
General Assembly such disparate and unjustified treatment of
local governing bodies. Accordingly, I conclude that the
phrase “board . . . of the locality” does not include a board
of supervisors and, therefore, this provision in Code § 15.2-
2314 does not confer standing on the Board.
28
III. CONCLUSION
For these reasons, I conclude that the circuit court
erred in finding that the Board had standing to appeal the
BZA’s decision to grant Hickerson a variance. I would
therefore reverse the circuit court’s judgment on the standing
issue and dismiss the Board’s petition for a writ of
certiorari.
29